Citation Nr: 1031139
Decision Date: 08/18/10 Archive Date: 08/24/10
DOCKET NO. 06-30 849 ) DATE
)
)
On appeal from the Department of Veterans Affairs (VA) Regional
Office (RO) in Boston, Massachusetts
THE ISSUES
Entitlement to service connection for residuals of injury to the
left middle finger.
Entitlement to service connection for residuals of injury to the
low back.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESSES AT HEARINGS ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Heather J. Harter, Counsel
INTRODUCTION
The Veteran served in active duty from April 1954 to May 1958.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a November 2005 RO decision. The Veteran
presented sworn testimony during an RO hearing in October 2005,
and during a hearing before the undersigned Veterans Law Judge in
May 2008. The Board remanded the appeal for further evidentiary
development in September 2008. Such development having been
accomplished to the extent possible without further cooperation
from the Veteran (as discussed further below), the matter has
been returned to the Board for final appellate review.
FINDINGS OF FACT
1. It is reasonably probable that the Veteran's middle finger
condition is of in-service origin.
2. The evidence does not support a finding that the Veteran's
currently-shown back disability is related to service.
CONCLUSIONS OF LAW
1. Resolving reasonable doubt in the Veteran's favor, an injury
to his left middle finger was incurred during service.
38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303
(2009).
2. The Veteran's current back disability was not incurred or
aggravated during service, and is not otherwise related to
service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran contends he sustained injuries to his back and left
middle finger during service and that service connection is
warranted for the residual disabilities.
Duties to notify and assist
When an application for benefits is received, VA has certain
notice and assistance requirements under the law. 38 U.S.C.A. §§
5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a). First, proper notice must be provided to a claimant
before the initial VA decision on a claim for benefits and must:
(1) inform the claimant about the information and evidence not of
record necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that VA will seek to
provide; and (3) inform the claimant about the information and
evidence the claimant is expected to provide. The Veteran was
provided with this information in letters of April, June, and
October 2005. The VA is also required to inform the Veteran of
how the VA assigns disability ratings and effective dates.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). It does
not appear that the Veteran has been given formal notice as to
the assignment of disability ratings and effective dates.
However, as no disability ratings or effective dates will be
assigned in connection with these claims, no prejudice accrues to
the Veteran through this oversight.
Governing regulation provides that in assisting a Veteran in
proving his claim, VA will make as many requests as are necessary
to obtain military records. VA will end its efforts to obtain
such records only if VA concludes that the records sought do not
exist or that further efforts to obtain those records would be
futile. Cases in which VA may conclude that no further efforts
are required include those in which the Federal department or
agency advises VA that the requested records do not exist or that
the custodian does not have them. 38 C.F.R. § 3.159(c)(2). In
this case, the National Personnel Records Center has certified
that the veteran's service records were destroyed by fire. The
RO attempted to obtain independent verification showing that the
tip of the Veteran's left middle finger was amputated during
service, and/or that he was treated for a back injury during
service. Other than a single morning report showing that the
Veteran had been excused from duty on December 16, 1955, (with no
indication as to why he was excused) alternative sources were
negative for any mention involving the Veteran. A memorandum
detailing the efforts undertaken to obtain records pertaining to
the Veteran and the conclusion that service records are indeed
unavailable was added to the claims file in October 2005.
Throughout the course of the VA's attempts to develop evidence
supporting the veteran's claims, VA has notified him that other
sources of information can serve to prove the validity of his
assertions, and informed him that he may submit such evidence
himself, or submit the appropriate authorizations to allow the VA
to obtain records on his behalf. In particular, pursuant to the
Board's September 2008 remand, the veteran was requested to
provide information regarding the private medical treatment he
has received for his back problems over the years since his
discharge from service. The transcripts of both hearings reflect
extensive discussion as to the Veteran's medical care, and
employment physical examinations, etc. He provided no response
to the VA's requests for additional information, however. "The
duty to assist is not always a one-way street. If a veteran
wishes help, he cannot passively wait for it in those
circumstances where he may or should have information that is
essential in obtaining the putative evidence." Wood v.
Derwinski, 1 Vet. App. 190, 193 (1991). If the veteran wished to
fully develop his claim, he had a corresponding duty to assist by
providing the requested information. The Board therefore holds
that, even though the veteran's claim has not been fully
developed, the VA has fulfilled its duty to assist him to the
extent possible. We will thus proceed to evaluate the veteran's
claim based on the evidence currently of record.
The Veteran has submitted some recent private medical records in
support of his claims. He was provided with a VA medical
examination in connection with his back claim. The Veteran and
his representative have presented written statements in support
of his claims, and the Veteran has presented sworn testimony
during two hearings on appeal. All relevant records and
contentions have been carefully reviewed. The Board therefore
concludes that the VA's duties to notify and assist have been met
to the extent possible absent further cooperation from the
veteran, with regard to the matters decided herein.
Standard of review
Once the evidence has been assembled, it is the Board's
responsibility to evaluate the record. 38 U.S.C.A. § 7104(a).
When there is an approximate balance of evidence regarding the
merits of an issue material to the determination of the matter,
the benefit of the doubt in resolving each such issue shall be
given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
stated that "a veteran need only demonstrate that there is an
'approximate balance of positive and negative evidence' in order
to prevail." To deny a claim on its merits, the evidence must
preponderate against the claim. Alemany v. Brown, 9 Vet. App.
518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Law and regulations
Generally, service connection may be granted for any disability
resulting from injury suffered or disease contracted in line of
duty, or for aggravation in service of a pre-existing injury or
disease. 38 U.S.C.A. §§ 1110, 1131. Service connection may be
established by demonstrating that the disability was first
manifested during service and has continued since service to the
present time or by showing that a disability which pre-existed
service was aggravated during service. Service connection may be
granted for any disease diagnosed after discharge from service,
when all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38 C.F.R.
§ 3.303.
When a chronic disease such as arthritis becomes manifest to a
degree of 10 percent within one year of the veteran's discharge
from service, such disease shall be presumed to have been
incurred in service, even though there is no evidence of such
disease during the veteran's period of service. 38 U.S.C.A.
§§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
With chronic disease shown as such in service (or within the
presumptive period under 38 C.F.R. § 3.307) so as to permit a
finding of service connection, subsequent manifestations of the
same chronic disease at any later date, however remote, are
service connected, unless clearly attributable to intercurrent
causes. Continuity of symptomatology must be shown only where
the condition noted during service (or in the presumptive period)
is not, in fact, shown to be chronic or where the diagnosis of
chronicity may be legitimately questioned. When the fact of
chronicity in service is not adequately supported, then a showing
of continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
As discussed above, the Veteran's service treatment and personnel
records were destroyed by fire. The Court has held that in cases
where records once in the hands of the government are lost, the
Board has a heightened obligation to explain its findings and
conclusions and to consider carefully the benefit-of-the-doubt
rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The
Board's analysis has been undertaken with this heightened duty in
mind. The case law does not, however, lower the legal standard
for proving a claim for service connection but rather increases
the Board's obligation to evaluate and discuss in it decision all
of the evidence that may be favorable to the veteran. Russo v.
Brown, 9 Vet. App. 46, 51 (1996).
The Veteran's assertions
In his initial claim, received in January 2005, the Veteran
asserted that he was involved in the 1954 explosion of a
500 pound bomb which was being moved to storage at Kimpo Air
Force Base in Korea. He stated that he lost part of a finger and
injured his back when he was blown into a metal building, and
that he was treated for these injuries in Korea and subsequently
at his next duty station in Alaska.
The Veteran submitted a notarized statement in June 2005.
According to this statement, he fractured his spine when the
force of the bomb explosion caused him to be blown backwards into
a Quonset Hut. He stated he underwent back surgery for the
fractured spine, was in the hospital for approximately one week,
and then returned to regular duty with no further treatment. He
then stated that the second injury occurred approximately one
month later, when he was a gunner on a plane which came under
enemy attack. He asserted that the tip of the third finger of
his left hand was hit by shrapnel, and later become infected,
requiring amputation approximately one year later in at Elmendorf
Air Force Base in Alaska.
During a January 2003 medical examination conducted following a
workplace injury, he related to the examining physician that he
had fractured his back in the Air Force, undergone surgery, and
was off duty for eight months recovering.
In a July 2006 statement in support of his substantive appeal,
the Veteran stated that he was out of work for approximately two
weeks following the in-service back surgery.
During the October 2006 RO hearing, the Veteran testified that he
was blown into the side of a building during an explosion at
Kimpo Air Force Base, that a broken bone in his back was
surgically repaired, and that he was out of work for only a
couple of days. He testified that his finger was injured while
he was flying. It was treated at the time, but then required
further surgery at Elmendorf Air Force Base in Alaska.
A May 2008 statement from the Veteran's younger brother reflects
the following: "This is in regard to [the Veteran] upon
returning home from the Air Force in the late 1950's. He had an
injury to his middle finger of his left hand. Being his younger
brother I asked at the time how he was hurt his response was that
he had been shot."
During the May 2008 Board hearing, the veteran reiterated his
story of having been caught in an explosion at Kimpo Air Force
Base, and being blown backward into a Quonset Hut. He again
stated that he had undergone back surgery and that his back did
not bother him afterward, although his doctors "tell me that's
why I have back problems now." In response to questioning, he
testified that he was only in the hospital for a few days, and
returned to flying after that. Regarding his finger, he
testified that "something came through our airplane and caught
it." He explained that the initial injury had simply required
sutures, but that the bone started to deteriorate afterward and
the tip of the finger was amputated about a year later, after he
had been transferred to Elmendorf Air Force Base in Alaska. His
representative pointed out that the Veteran had experienced no
injury post-service which could have caused an amputation of the
top of his middle finger. The Veteran testified that he had
attempted to get copies of his flight physical reports over the
years from the Federal Aviation Administration, but "the guys
that gave them are all gone." The Veteran's representative also
pointed out that an Air Force morning report showing that the
Veteran was excused from duty on December 16, 1955, is of record
and asserted that that must have been the day when his finger was
partially amputated.
The medical evidence
As discussed above, unfortunately, there are no service treatment
records. The sole piece of evidence contemporaneous to service
is the morning report showing that the Veteran was excused from
duty on December 16, 1955. The report does not indicate why the
Veteran was excused from duty; however, it is consistent with the
Veteran's statement that the tip of his finger was amputated in
December 1955. The Board finds the assumption posited by his
representative, that this morning report represents confirmation
of the Veteran's finger amputation surgery on that date, to be
reasonable.
The earliest medical evidence available for review is dated in
2003, forty-five years after the Veteran's discharge from
service. A January 2003 report reflects a medical examination
conducted for the Liberty Mutual Insurance Company following a
workplace injury in July 2002. At that time, the Veteran related
to the examining physician that he had fractured his back in the
Air Force, undergone surgery, and was off duty for eight months
recovering. He also indicated that he had not had any ongoing
symptoms in his low back until the injury in 2002 when he
experienced a sudden pain in the low back while "breaking a set
of doubles apart." Upon examination, the physician noted a 2 1/2
inch lumbar surgical scar. The examiner also noted several
inconsistencies in the physical examination which were indicative
of exaggeration of symptoms on the part of the Veteran.
Following the clinical examination and review of X-ray and
magnetic resonance imaging studies, the examiner rendered
diagnoses of 1) long standing pre-existing severe degenerative
disc disease at L4-5 without active radiculopathy; and 2) lumbar
sprain/strain, superimposed on pre-existing degenerative disc
disease. The physician rendered the opinion that the majority of
the Veteran's back symptomatology was due to the service injury,
rather than the 2002 workplace injury:
Any element of lumbar sprain/strain would have
healed anatomically within 3-6 weeks following
the July 24, 2002, event. In my opinion
perpetuation of his symptomatology is more
likely than not due to an aggravation of a
pre-existing significant abnormality at the
L4-5 level evidently resultant from his old
United States air force injury in 1957,
resulting in the necessity for surgery.
The September 2003 report of another medical examination
performed in connection with the worker's compensation claim
contains similar findings. The Veteran again reported having
undergone surgery in the Air Force and having had an eight month
period of recuperation before returning to full duty. This
physician also concluded that the Veteran had lumbar degenerative
spondylitis with spurring that pre-existed the 2002 workplace
injury; but that the workplace injury aggravated the pre-existing
spondylitis and rendering the disability symptomatic.
Recent treatment records from the Veteran's own physicians do not
include significant discussion of the old injury or surgery, but
rather reflect his current symptoms and treatment. These
diagnoses include degenerative changes and narrowing of the disc
at L4-5, with compression of the L4 nerve root.
The Veteran underwent a VA examination for purposes of
compensation in December 2009. The examiner noted the problems
inherent to the absence of service records. The Veteran told the
examiner that he was thrown against a wall during the explosion,
had back surgery at the base hospital, and stayed in the hospital
for several days before returning to regular duty. Following a
clinical examination, the examiner rendered a diagnosis of
degenerative spondylitis of the lumbar spine, causing decreased
mobility, problems with lifting and carrying, weakness or
fatigue, decreased strength, and pain. The examiner also
reviewed the medical records set forth above and noted the
conclusion reached by the other physicians that the veteran's
back problems were largely due to the injury in service. The
examiner essentially agreed, stating that the Veteran's back
condition had a 50 percent or greater likelihood of being related
to the in-service injury, if the in-service injury could be
independently substantiated.
Analysis
The crucial problem in this case is the absence of supporting
evidence which is at all contemporaneous to the Veteran's period
of service. Essentially, there are two documents which are
contemporaneous to the Veteran's service. The Veteran's Air
Force discharge form establishes that he served in the Air Force
from April 1954 to May 1958, but contains no information
whatsoever about his health status. The other piece of
contemporaneous evidence is the morning report showing that he
was excused from duty on a single day in December 1955, with no
indication as to why he was excused.
To fill in the extensive gaps between 1958, when the Veteran was
discharged from service and 2003, the date of the next piece of
contemporaneous evidence, the record as it stands provides only
the Veteran's recollections and the informed speculations of
several physicians. As discussed in detail above, unsuccessful
attempts to obtain alternative Air Force records were made. The
VA requested that the Veteran provide corroborating evidence, but
he did not do so. Any medical evidence reflecting his physical
condition at a time proximate to service, or at least prior to
the 2002 workplace injury, would have been extremely helpful in
understanding the condition of his back closer in time to
service. As noted above, if he wished to fully develop his
claim, he had a corresponding duty to assist by providing the
requested information.
It is the responsibility of the Board to review all the evidence
of record and reach a conclusion by applying the standard of
review set forth above. The United States Court of Appeals for
the Federal Circuit has recognized the Board's "authority to
discount the weight and probity of evidence in light of its own
inherent characteristics and its relationship to other items of
evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir.
1997). "It is the responsibility of the BVA, . . . to assess
the credibility and weight to be given to evidence." Owens v.
Brown, 7 Vet. App. 429, 433 (1995). The Board must analyze the
credibility and probative value of the evidence, account for the
persuasiveness of the evidence, and provide reasons for rejecting
any material evidence favorable to the claimant. Caluza v.
Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604
(Fed.Cir.1996) (table).
In this case, the Board finds that the evidence pertaining to the
Veteran's finger falls into equipoise, and that service
connection for residuals of injury to the left middle finger is
warranted. However, we find that the scanty evidence of record
weighs against a finding that the Veteran's currently-shown back
disability had its inception during service.
Finger
With regard to the Veteran's left middle finger, any layperson
can view the finger to ascertain its current condition, missing
the tip of the finger. However, the only link to service
consists of the Veteran's own statement and the statement
submitted by his brother.
The Veteran initially stated that his finger was injured in the
same bomb blast which caused his back injury. However, he
subsequently contended that his finger was injured by shrapnel
during the course of engagement with the enemy, and during the
May 2008 Board hearing, he testified that "something came
through our airplane and caught it."
Despite the inconsistencies in the Veteran's stories as to the
original finger injury in service, the Board nonetheless finds
support for the Veteran's claim for service connection in the
evidence of record. Because the nature of the injury is one
which is easily observable and identifiable by a layperson; i.e.,
that the Veteran is missing the tip of his middle finger, we find
the statement submitted by the Veteran's brother to be very
credible and persuasive. In particular, this statement places
the missing finger back in time to when the Veteran was returning
home from the Air Force in the late 1950s. Additionally, the
morning report showing that the Veteran was excused from duty for
a single day in December 1955 is consistent with the Veteran's
statement that his finger required amputation after the onset of
infection. As the Veteran's representative points out, the
veteran has reported no other injury affecting his finger
subsequent to service. All things considered, the Board finds
that the admittedly-scanty evidence pertaining to the Veteran's
left middle finger falls into equipoise. As set forth above,
governing law provides that when there is an approximate balance
of evidence regarding the merits of an issue, the benefit of the
doubt in resolving each such issue shall be given to the
claimant. We therefore hold that service connection for
residuals of injury to the Veteran's left middle finger is
warranted.
Back
Currently, the evidence of record is clear that the Veteran has a
low back disability consisting of degenerative spondylitis and
disc disease at L4-5. Also clear is that at least three
physicians deem the spondylitis to have existed prior to the
Veteran's 2002 workplace injury. However, the link associating
the current disability with an injury in service and surgery in
service is supplied solely by the Veteran's statements.
The most important evidence, and indeed, virtually the only
evidence supporting the claims, consists of the Veteran's own
account of what happened in service. Indeed, lay evidence may be
used to support a finding of nexus between a claimant's present
disability and his post service symptomatology. Barr v.
Nicholson, 21 Vet. App. 303, 307 (2007). In this case, though,
while we do not contest the Veteran's competency to report
injuries and surgeries in service, under the circumstances we are
compelled to question his credibility in making such reports in
support of a claim for monetary benefits.
In this regard, we note that the Veteran's own accounts of the
injuries in service are inconsistent. During the medical
examinations, he reported a recovery period of eight months
following back surgery in service, while in the June 2005
notarized statement and in his hearing testimony, he stated he
was able to return to duty within a few days to a week after
service. Although the Board is cognizant of the length of time
which has passed since these events occurred, and of the
fallibilities of human memory, we find it incredible that these
significant facts could be so blurred in the Veteran's mind. In
this regard, as the Veteran's notarized statement and his hearing
testimony were provided under oath, we accord greater credibility
to his recollection of the shorter recovery period.
The matter of the Veteran's recollection of what occurred in
service must be viewed in light of the complex medical nature of
his allegations as well. Unlike the amputation of his finger,
sorting out pathologies involving the spine is an inherently
medical proposition, which is not readily accessible to the
layperson. Layno v. Brown, 5 Vet. App. 465, 469 (1994); Espiritu
v. Derwinski, 2 Vet. App. 492, 494-95 (1992). While the Veteran
is competent to report that he injured his back and had surgery,
he is not competent to report exactly what the injury was, or the
nature of the surgery. For instance, the removal of a metal
splinter from the skin and soft tissues of his back could fit the
set of facts reported by the Veteran during his hearings as
easily as the construction he advocates, but such an injury would
have no bearing whatsoever on the currently-shown degenerative
spondylitis. For the Board to accept one history of the injury
over another equally-plausible interpretation of facts as we know
them, absent any additional evidence would constitute an improper
exercise of legal judgment and potentially an improper medical
judgment on our part, as well. Colvin v. Derwinski, 1 Vet. App.
171 (1991).
Additionally we find it significant that the request for morning
reports yielded evidence showing that the Veteran was excused
from duty for a single day. There is no indication that the
veteran was off duty for either a few days or for a period of
eight months for back surgery, as he variously claims; rather the
absence of additional morning reports pertaining to the Veteran
tends to show that he was not, in fact, excused from duty on any
other date.
Furthermore, because the medical doctors who have linked the
Veteran's current back problems to an old injury in service
predicated their opinions upon the Veteran's uncorroborated
statement that his surgery in service had required an eight-month
period of recuperation, evaluating the credibility of the
Veteran's recollections is key to interpreting the medical
opinions and thus essentially governs our decision in this
matter. In summary, because we find the Veteran's account of his
original injuries and surgeries to be somewhat incredible, the
rest of his statements are called into question as well. In this
regard, it is important to clarify that we find the three medical
opinions pertinent to the veteran's back problems to be
competent. However, each opinion is clearly based upon the
Veteran's own statement as to the injury and surgery in service.
When a conclusion reached by the physician is clearly based
solely on the history provided by the veteran, or the hearsay
recitation of a diagnosis or other medical history, the Board is
not bound to accept the medical conclusions and/or opinions of a
physician. See DeSousa v. Gober, 10 Vet. App. 461 (1997).
In conclusion, the Board finds that the Veteran's statements and
testimony are incredible, in that some of his statements are in
contradiction with one another, and other statements which remain
unsupported by any corroborating evidence, are not inherently
believable standing alone. That the veteran had some kind of
back surgery in the past is clear; that this injury and surgery
occurred during service is not established by the record as it
stands, however. The presence of arthritis within one year of
discharge from service is not established. The lengthy period
without documentation of any disability, post-service, weighs
heavily against the claims. Maxson v. Gober, 230 F.3d 1330 (Fed.
Cir. 2000). The preponderance of the evidence is against the
Veteran's claim for service connection for a back disability and
the appeal must be denied.
Continued on next page
ORDER
Entitlement to service connection for residuals of injury to the
low back is denied.
Entitlement to service connection for residuals of injury to the
left middle finger is granted.
____________________________________________
STEVEN L. COHN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs